Parker v. Tennessee Department of Corrections et al

Filing 4

ORDER DIRECTING PLAINTIFF TO COMPLY WITH 28 U.S.C. § 1915(a)(1)-(2) OR PAY $400 CIVIL FILING FEE. Signed by Judge James D. Todd on 12/20/16. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
BRYAN J. PARKER,
Plaintiff,
VS.
TENNESSEE DEPARTMENT OF
CORRECTION, ET AL.,
Defendants.

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No. 16-1321-JDT-cgc

ORDER DIRECTING PLAINTIFF TO COMPLY WITH
28 U.S.C. § 1915(a)(1)-(2) OR PAY $400 CIVIL FILING FEE

On December 16, 2016, Plaintiff Bryan J. Parker, who is incarcerated at the Hardeman
County Correctional Facility in Whiteville, Tennessee, filed a pro se complaint pursuant to 42
U.S.C. § 1983. (ECF No. 1.) However, Plaintiff neglected to submit either the $400 civil filing fee
required by 28 U.S.C. §§ 1914(a)-(b) or an application to proceed in forma pauperis.
Under the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. §§ 1915(a)-(b), a prisoner
bringing a civil action must pay the filing fee required by 28 U.S.C. § 1914(a).1 Although the
obligation to pay the fee accrues at the moment the case is filed, see McGore v. Wrigglesworth, 114
F.3d 601, 605 (6th Cir. 1997), partially overruled on other grounds by LaFountain v. Harry, 716

1

Twenty-eight U.S.C. § 1914(a) requires a civil filing fee of $350. However, pursuant to
§ 1914(b), “[t]he clerk shall collect from the parties such additional fees only as are prescribed
by the Judicial Conference of the United States.” The Judicial Conference has prescribed an
additional administrative fee of $50 for filing any civil case, except for cases seeking habeas
corpus and cases in which the plaintiff is granted leave to proceed in forma pauperis under 28
U.S.C. § 1915. Thus, if Plaintiff is granted leave to proceed in forma pauperis, he will not be
liable for the additional $50 fee.

F.3d 944, 951 (6th Cir. 2013), the PLRA provides the prisoner the opportunity to make a “down
payment” of a partial filing fee and pay the remainder in installments. Id. at 604. However, in order
to take advantage of the installment procedures, the prisoner must complete and submit to the district
court, along with the complaint, an in forma pauperis affidavit and a certified copy of his inmate
trust account statement for the last six months. 28 U.S.C. § 1915(a)(2). In this case, although
Plaintiff did submit a certified copy of his trust account statement (ECF Nos. 1-1 & 1-2), he did not
include an in forma pauperis affidavit.
Therefore, the Plaintiff is ORDERED to submit, within 30 days after the date of this order,
either the entire $400 civil filing fee or a properly completed and executed application to proceed
in forma pauperis.2 The Clerk is directed to mail Plaintiff a copy of the prisoner in forma pauperis
affidavit form along with this order. If Plaintiff needs additional time to submit the affidavit, he
may, within 30 days after the date of this order, file a motion for an extension of time.
If Plaintiff timely submits the necessary document and the Court finds that he is indeed
indigent, the Court will grant leave to proceed in forma pauperis and assess only a $350 filing fee
in accordance with the installment procedures of 28 U.S.C. § 1915(b). However, if Plaintiff fails to
comply with this order in a timely manner the Court will deny leave to proceed in forma pauperis,
assess the entire $400 filing fee from his inmate trust account without regard to the installment
payment procedures, and dismiss the action without further notice for failure to prosecute, pursuant
to Fed. R. Civ. P. 41(b). McGore, 114 F.3d at 605.3

2

Plaintiff does not need to submit another copy of his trust account statement.

3

Even a voluntary dismissal by Plaintiff will not eliminate the obligation to pay the filing
fee. McGore. 114 F.3d at 607; see also In re Alea, 286 F.3d 378, 381 (6th Cir. 2002).
2

If Plaintiff is transferred to a different prison or released, he is ORDERED to notify the Court
immediately, in writing, of his change of address. Failure to abide by this requirement also may
result in the dismissal this action, without further notice, for failure to prosecute.
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

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